April 30, 2013
Slater on Interest Arbitration
Joe Slater (Toledo) just posted on SSRN his article (OSJDR) Interest Arbitration as Alternative Dispute Resolution: The History from 1919 to 2011. Here's the abstract:
This paper comes from a February 2012 Symposium, "The Role of ADR Mechanisms in Public Sector Labor Disputes: What Is at Stake, Where We Can Improve & How We Can Learn from the Private Sector." It discusses the history of an important form of alternative dispute resolution: the use of what is called “interest arbitration” to resolve bargaining impasses in public-sector labor relations. This process is used in many states as an alternative to strikes. While interest arbitration has been a crucial part of public-sector labor law and labor relations for decades, it has come under increased scrutiny recently. Indeed, in the wave of laws passed in 2011 restricting the rights of public-sector unions to bargain collectively, interest arbitration was repeatedly attacked, and in several states it was eliminated or restricted.
This paper gives a historical overview of the development of interest arbitration, discussing how and why it developed as it did. This development was neither inevitable nor “natural” in that many other western democracies generally allow public workers to strike. But only a few states in the U.S. allows any public workers to strike. Thus, the question is: why did U.S. law and policy develop the way it did? This paper traces the relevant history from 1919 through to the new, restrictive laws of 2011. It starts with the Boston Police strike of 1919 — a seminal event in the history of public-sector labor law, that had a profound and lasting impact on how U.S. policymakers felt about dispute resolution in public sector labor law. It then turns to the first public-sector labor law permitting collective bargaining — passed, ironically in view of recent events, in Wisconsin in 1959 — and describes how concerns about dispute resolution were central to debates over that law. The paper continues by explaining how interest arbitration in public-sector labor relations has evolved and how it has worked from the 1960s into the 21st century. Finally, the paper explores the very recent developments in this area in the laws of 2011.
April 08, 2013
Brown on Comparative Alternative Dispute Resolution for Individual Labor Disputes in Japan, China and the United States: Lessons from Asia?
Ron Brown (Hawaii) has recently published in the St. John's Law Review (86 St. John's L. Rev. 843) his new article: Comparative Alternative Dispute Resolution for Individual Labor Disputes in Japan, China and the United States: Lessons from Asia?
Here is the abstract:
Resolving individual labor rights disputes in East Asia and the United States in recent years has taken on new significance and prominence for both domestic and multinational corporations. New legal approaches have been put into place in Japan, China, and the United States that deal with individual rights under either individual and/or collective contract or statutory labor disputes. The United States Supreme Court has approved the use of private arbitration under individual and collective contracts to resolve both contractual and statutory labor disputes. How these approaches compare may provide thought of reform for the U.S., no matter how unlikely.
This area of the law is, needless to say, developing at lightening speed. Having myself learned about how arbitration works in Japan during my travels there, I know that Ron's piece will shed much needed light on how other parts of the world rely on ADR to resolve their legal disputes.
April 03, 2013
Recently Published Scholarship: St. John's LR Symposium
St. John’s Law Review, Volume 86, Number 2 - Spring 2012
Symposium: Worlds of Work: Employment Dispute Resolution Systems Across the Globe
- Paul F. Kirgis & David Gregory, Introduction
- Keynote Address: Theodore J. St. Antoine, The Moral Dimension of Employment Dispute Resolution, p. 391.
- Samuel Estreicher, Strategy for Labor Revisited, p. 413.
- William B. Gould IV, A Century and Half Century of Advance and Retreat: The Ebbs and Flows of Workplace Democracy, p.431.
- Julius Getman & Dan Getman, Winning the FLSA Battle: How Corporations Use Arbitration Clauses to Avoid Judges, Juries, Plaintiffs, and Laws, p. 447.
- George H. Cohen, Advancing Student Achievement in the United States Public Schools Through Labor-Management Collaboration: The FMCS’s Evolving Role in Education Reform, p.465.
- David L. Gregory & Michael Harary, A Comparative Assessment of Labor and Employment Dispute Resolution in the United States and United Kingdom from 2006 Through 2011, p. 485.
- Guido Carducci, The Importance of Legal Context and Other Considerations in Assessing the Suitability of Negotiations, Mediation, Arbitration and Litigation in Resolving Effectively Domestic and International Disputes (Employment Disputes and Beyond), p. 511.
- Ronald C. Brown, Comparative Alternative Dispute Resolution for Individual Labor Disputes in Japan, China, and the United States: Lessons from Asia?, p. 543.
- Elayne E. Greenberg, Overcoming Out Global Disability in the Workforce: Mediating the Dream, p. 579.
- Mary Kalich, Do You Need A Doctor’s Note? Lay Testimony Should be Sufficient Evidence for FMLA Leave Unless Compelling Counter Conditions Exist, p. 603.
- Jennifer Kelly, He Said, She Said: Sex Prosecutions and Spousal Privileges Under the Federal Rules of Evidence, p. 637.
- Nicole Lapsatis, In the Best Interests of No One: How New York’s “Best Interests of the Child” Law Violates Parents’ Fundamental Right to the Care, Custody, and Control of Their Children, p. 673.
- Daniel Mazzella, We’re on a Mission from God: Properly Interrupting RLUIPA’s “Equal Terms” Provision, p. 715.
March 19, 2013
Sullivan & Glynn on D.R. Horton
Charlie Sullivan & Tim Glynn (both Seton Hall) have just posted on SSRN their article (forthcoming 64 Alabama L. Rev. (2013)) Horton Hatches the Egg: Concerted Action Includes Concerted Dispute Resolution. Here's the abstract:
As interpreted by the Supreme Court, the Federal Arbitration Act has largely swept all before it, validating agreements to arbitrate almost all disputes, including those involving claims under statutes regulating the employment relation. That era may be nearing an end. The National Labor Relations Board recently held in In re D.R. Horton that employers may not compel employees to waive their NLRA right to pursue collective legal redress of employment claims. Instead, the NLRA mandates that some mechanism for concerted dispute resolution remain available in arbitral or judicial forums. Unsurprisingly, this decision has generated an enormous amount of litigation. Although the case itself is pending before the Fifth Circuit, courts across the country are now confronting Horton-based challenges to the enforcement of mandatory arbitration clauses in employment contracts. To date, they have generally rejected these challenges on various grounds.
This Article will explore why these courts are wrong and why agreements that bar concerted dispute resolution are indeed invalid. The Board’s articulation of labor law rights ordinarily is entitled to judicial deference. But such deference has been called into question in Horton itself in part because of a recent circuit court decision invalidating recess appointments to the Board. As we will demonstrate, however, no deference is necessary because Horton reflects the correctnot merely a reasonableinterpretation of the NLRA as well as its predecessor, the Norris-LaGuardia Act.
Moreover, although the Supreme Court has seemingly treated the Federal Arbitration Act as a “super-statute” that overwhelms all before it, the Court has simultaneously denied doing more than applying what textual analysis and interpretive conventions require. The Horton question will force the Court to confront the collision between what it says and what it does. Established doctrines of statutory interpretation, recently and resoundingly reaffirmed by the Court, dictate a contrary result. Indeed, to the extent the concerted activity mandate of federal labor law conflicts with provisions of the FAA, the former clearly supersedes the latter.
With apologies to Dr. Seuss, Horton meant what it said and said what it meant. Courts must follow, one hundred percent.
For what it's worth, I agree completely with Charlie and Tim about what the Court should do, but I do not expect that this is what the Court will do. As I have argued elsewhere, the Court is, in FAA cases, all too willing to subsume plain language to the Court's policy preference for arbitration. I suspect that the Court will do as it did in Concepcion, and find that the D.R. Horton rule would have the effect of discouraging employers from promulgating individual employment arbitration agreements and therefore is inconsistent with the FAA.
One might argue that Concepcion is distinguishable because it involved a potential conflict between the FAA and a state common-law doctrine (unconscionability) instead of a federal statute (NLRA). But I wouldn't read too much into this given the express language in the FAA Section 2 preserving state common-law defenses to arbitration agreements. If the Court in Concepcion was willing to erase that language, I see no reason why the Court will give the language of the NLRA any higher priority.
March 12, 2013
Many Workplace Prof Blog readers will recall Suja Thomas's presentation at January's AALS Conference / Employment Discrimination panel in which she argued that Twombly, Wal-Mart, and Ricci are oddball cases—cases with atypical facts in which the Court made broad changes to the law in a way that significantly affects cases with more typical facts. Since then, she has written an article entitled The Oddball Doctrine: How Atypical Cases Make Bad Law in which she argues that the Court should exercise restraint by not making legal changes in these types of cases. During Suja’s presentation, it occurred to me that the Oddball Doctrine could apply to many of the Court’s recent arbitration decisions.
That inspiration has resulted in my most recent article (co-authored with Mark Gerano; forthcoming 30 Hofstra JLEL (2013)) Oddball Arbitration. The abstract is below. I've also posted over on PrawfsBlawg an attempt to crowdsource other areas of the law in which the Court may be using cases with oddball facts to shape the law under the political radar. Check it out.
Congress passed the FAA in 1925 to resolve commercial disputes involving merchants. Since then, the Supreme Court has dramatically expanded the scope of the FAA and applied it in the employee and consumer settings. More recently the Supreme Court has chosen for its arbitration docket a set of cases with wholly atypical fact patterns in what appears to be a deliberate effort – successful so far – to advance its pro-arbitration policy agenda without provoking a political backlash. This article describes three oddball arbitration cases and argues that their atypical facts have permitted the Court to create legal rules that, while perhaps creating a just outcome in the oddball cases themselves, create unjust outcomes in the typical arbitration cases that much more commonly appear in the lower courts.
March 01, 2013
Oral Argument in Italian Colors
The Supreme Court Wednesday heard oral arguments in Italian Colors, a consumer arbitration case that has thepotential to nuke one of the few remaining defenses to employment arbitration agreements. Mark Gerano summarizes oral argument as follows:
On Wednesday, February 27 the Court heard oral arguments in the case American Express v. Italian Colors Restaurant. (No-12-133). The majority of the argument centered on whether the plaintiffs would be able to effectively vindicate their statutory rights under the Sherman Act without filing a class-action lawsuit in federal court. The plaintiffs assert that in order to bring this case, they will have to hire experts at a very high cost – something that would not be cost-effective if they were forced to arbitrate claims individually. Justice Kagan and Justice Ginsburg seemed concerned with the fact that foreclosing such a class action would effectively make the plaintiffs unable to vindicate their statutory rights under the Sherman Act because of the cost.
Justices Scalia, Kennedy and the Chief Justice did not display the same sympathy for the plaintiffs in this case. Justice Scalia pointed out that the Sherman Act was created nearly forty years prior to FRCP Rule 23 allowing class actions. He [suggested that the Sherman Act's enforced without class actions.] Like Justice Scalia, the Chief Justice seemed skeptical that a class action was the only way for these plaintiffs to effectively vindicate their rights. He urged that even without a class action, plaintiffs could still work together to share costs of experts and other parts of the litigation, thus significantly reducing their costs. He repeatedly suggested using trade associations to compile the type of reports needed to show Sherman Act violations. The [plaintiffs] countered by arguing that the cost sharing might be prevented because often times arbitration agreements contain confidentiality provisions that would prevent this type of sharing. Nonetheless, the Justices suggested a number of other ways that the cost be kept to a minimum and did not seem persuaded that class action litigation was the only way this group of plaintiffs could effectively vindicate their rights. Because of this strong push to finding a way other than class action for the plaintiffs to vindicate their rights, I think it is a safe bet that American Express will prevail in its petition.
Given what happened at oral argument, I think the best-case scenario is that the Court rules for American Express on the ground that plaintiffs have not shown an inability to vindicate their statutory rights, but will leave (at least for now) the vindication-of-statutory-rights defense intact.
January 23, 2013
Recently Published Scholarship: OSJDR Symposium on ADR in Public-Sector Labor Disputes
vol. 28 #1 (2013)
Symposium 2012: The Role of ADR Mechanisms in Public Sector Labor Disputes: What Is at Stake, Where We Can Improve, and How We Can Learn from the Private Sector
- Michael Carrell & Richard Bales, Considering Final Offer Arbitration to Resolve Public Sector Impasses in Times of Concession Bargaining, p. 1.
- Howard S. Bellman, The Importance of Impasse Resolution Procedures to Recent Revisions of Wisconsin Public Sector Labor Law, p. 37.
- Charles B. Craver, The Use of Alternative Dispute Resolution Techniques to Resolve Public Sector Bargaining Disputes, p. 45.
- Ariel C. Avgar, J. Ryan Lamare, David B. Lipsky, & Abhishek Gupta, Unions and ADR: The Relationship between Labor Unions and Workplace Dispute Resolution in U.S. Corporations, p. 63.
- Joel Cutcher-Gershenfeld & Saul A. Rubinstein, Innovation and Transformation in Public Sector Employment Relations: Future Prospects on a Contested Terrain, p. 107.
- Martin H. Malin, Two Models of Interest Arbitration, p. 145.
- Lamont E. Stallworth & Daniel J. Kaspar, Employing the Presidential Executive Order and the Law to Provide Integrated Conflict Management Systems and ADR Processes: The Proposed National Employment Dispute Resolution Act (NEDRA), p. 171.
January 15, 2013
Wong on Arbitration, Intent, and Intellectual Dishonesty
The U.S. Supreme Court’s jurisprudence interpreting the Federal Arbitration Act (FAA) is incoherent insofar as it relies on the concept of the parties’ “intent.” on the matter. To illustrate this distorting influence of "intent," the Article dissects Supreme Court opinions in two broad sections of the FAA case law, both of which illustrate vividly the deforming effect of intent on it. The first concerns the carving up of jurisdiction between courts and arbitrators that goes to the foundations of the FAA, namely, the question of which decisionmaker — court or arbitrator — should determine whether the underlying dispute is arbitrable. The second is a controversy of more recent provenance that already has striking implications for all manner of consumer and employment contracts, specifically, the question concerning the availability of class arbitration. The result of this confused exercise is a tottering FAA case law built on ever more rarefied abstractions of “intent” that are little anchored in reality, but yet impact in a very real way a broad range of contracts, including countless consumer and employment agreements. Thus, a complete and accurate account of the Court’s jurisprudence under the FAA is not possible without a close scrutiny of the role of “intent,” a concept that is ultimately wanting.
This is a terrific article. Though this is far from the first article to argue that the Supreme Court’s FAA jurisprudence reasons backwards from the Court's strong policy preference for bilateral arbitration, it is the first article to rigorously analyze the Court’s shifting meaning of intent and to posit that this is the (or at least a) mechanism by which the Court does so. The article is extraordinarily timely, having been written shortly after the Court’s recent Concepcion opinion began sending up howls of disbelief, and just before the Court seems ready to do it all again in Italian Colors (see here and here).
December 19, 2012
Italian Colors to be Argued February 27
Thanks to Ian Mitchell for alerting me that the Supreme Court will hear oral arguments on February 27 in American Express Co. v. Italian Colors Restaurant, No. 12-133, 2012 WL 3096737 (U.S. Nov. 9, 2012). At issue is whether "interferes with the vindication of federal statutory rights" survives as a defense to lopsided arbitration agreements.
December 05, 2012
Kirgis on Nitro-Lift
I am re-posting here, with permission, a post by Paul Kirgis (St. John's) over at ADR Prof Blog on the Supreme Court's most recent arbitration case. The original post is Nitro-Lift Technologies v. Howard: The Arbitration Locomotive Rolls On.
As Jill Gross suggested in her post the other day, there is nothing novel about the Supreme Court’s per curiam decision in Nitro-Lift Technologies v. Howard, 568 U.S. ___ (2012). And the fact that the case seems unexceptional is powerful evidence for how extreme the Supreme Court’s arbitration jurisprudence has become.
Like most states, Oklahoma has long disfavored covenants not to compete. Oklahoma goes further than many in that it has enacted a statute, passed in 2001, rendering void and unenforceable any contract that prevents an employee from engaging “in the same business as that conducted by the former employer or in a similar business as that conducted by the former employer as long as the former employee does not directly solicit the sale of goods, services or a combination of goods and services from the established customers of the former employer.” Okla. Stat. Tit. 15 § 219A. Without question, Oklahoma considers the regulation of contracts in restraint of trade to be an important public policy matter.
In Nitro-Lift, the Oklahoma Supreme Court refused to enforce an arbitration agreement in a dispute involving a covenant not to compete. Unfortunately, the court’s sloppy reasoning left it open to a summary reversal by the Supremes. The Oklahoma court, citing only its own precedents, held that “the existence of an arbitration agreement in an employment contract does not prohibit judicial review of the underlying agreement.” That holding is obviously in conflict with Federal Arbitration Act precedent, so its reversal is unsurprising.
But the result of the decision is remarkable. Private employers in Oklahoma are flatly prohibited from including broad covenants not to compete in their contracts with employees. Enforcing that proscription—and thus protecting both the free market and the rights of employees—would appear to be a basic obligation of the Oklahoma courts. Yet the courts of Oklahoma have just been told that private employers can, simply by dropping a paragraph of text into an employment contract, divest them of jurisdiction to enforce Oklahoma’s law against covenants not to compete.
Decisions like Nitro-Lift are extraordinary in their disregard for principles of federalism. The Supreme Court’s arbitration jurisprudence uses a short procedural statute enacted almost 90 years ago to deprive states of their historical prerogative to regulate and enforce private contracts. As Richard Reuben has persuasively argued, this is not a conservative position. It’s an example of judicial activism in the service a radical Chamber of Commerce agenda.
November 14, 2012
Is There Any Defense to a Lopsided Arbitration Agreement?
Last week, while I was on the road, the Supreme Court granted the petition for a writ of certiorari in American Express Co. v. Italian Colors Restaurant, No. 12-133, 2012 WL 3096737 (U.S. Nov. 9, 2012). At issue is "[w]hether the Federal Arbitration Act permits courts, invoking the ‘federal substantive law of arbitrability,’ to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal law claim.” See generally Jill Gross's post over at ADR Prof Blog.
Recall that in AT&T Mobility v. Concepcion, the Supreme Court enforced an arbitration agreement containing a class-action waiver over a finding that under state law the waiver was unconscionable. In Italian Colors, the Second Circuit has held that a similar waiver is unenforceable because it interferes with the vindication of federal statutory (antitrust) rights.
The Federal Arbitration Act requires enforcement of arbitrtion agreements "save for" generally applicable defenses available under state contract law. The Supreme Court in Concepcion effectively read the "save for" language out of the statute. The one defense left to lopsided arbitration agreements is that they interfere with the vindication of federal statutory rights such as the right to be free from workplace discrimination created by Title VII. In other words, when a lopsided arbitration agreement forces a court to choose between enforcing the FAA on the one hand and vindicating Title VII rights on the other, courts should choose the latter.
I expect the Supreme Court will choose the former, and will advance three grounds for doing so. First, the Court will argue that the either/or proposition of FAA v. statutes such as Title VII is chimerical -- consumers and employees can still pursue their claims individually even if they are barred from pursuing the claims as class actions. The Court will ignore, as it did in Concepcion, the contrary argument that aggregating claims is practically -- albeit not legally -- the only way to bring high-volume low-dollar claims.
Second, the Court will argue that the "plain language" of the FAA should trump the "policies" behind federal statutes such as Title VII. Of course, the really plain language of the FAA creates a state-contract-law defense that the Supreme Court white-outed in Concepcion in favor of the pro-arbitration policy of that statute.
Third, the Court will argue that the "presumption of arbitrability" articulated in Mitsubishi v. Soler Chrysler-Plymouth (1985) means that if the FAA is inconsistent with other federal statutes, the FAA should trump later-enacted statutes because Congress, in enacting those statutes, could have but chose not to write into those statutes provisions saying that those statutes trump the FAA. Never mind that the Congresses that passed both the FAA and the later statutes never dreamed that an activist Supreme Court would apply the FAA to employment and consumer disputes, way beyond the commercial disputes for which the statute was designed.
One final note. When the Supreme Court accepted cert in Concepcion, it did so in an extraordinarily atypical arbitration case in which the defendant had gone way out of its way to ensure that individual rights could be pursued notwithstanding the class-action waiver. This allowed the Court to hand down a pro-arbitration ruling while ignoring the anti-consumer/employee effect the ruling would have on the vast majority of cases to which the FAA now is being applied. In Italian Colors, the Court has done it again. Plantiffs are merchants who have sued American Express over the terms AmEx imposes on merchants who accept AmEx credit cards from consumers. Thus, the Court will have the opportunity to issue yet another pro-arbitration ruling in a context that hides the the anti-consumer/employee effect the ruling will have on the vast majority of cases now subject to the FAA. Maybe the likely outcome of Italian Colors is justified in the context of the commercial cases for which the FAA originally was designed. But it certainly is not justified in the context of the commercial/employment cases to which the Court now is requiring that it be applied.
November 12, 2012
Drummonds on The Public Policy Exception to Labor Arbitration Award Enforcement
Henry Drummonds (Lewis and Clark College - Law School) has posted on SSRN his forthcoming piece in the Willamette Law Review: The Public Policy Exception to Labor Arbitration Award Enforcement: A Path Through the Bramble Bush.
Here is the abstract:
Prompted by a dispute over a labor arbitrator’s controversial reinstatement award in favor of an Oregon police officer who fatally shot a suicidal black man in the back after the man’s family had called the police for help, this article argues for a revitalized public policy exception to arbitral award enforcement. In this view, the public policy exception sometimes suffers from too cribbed an interpretation by both management and union lawyers, arbitrators, and reviewing courts and labor boards. At the same time a revitalized public policy exception must be applied judiciously so as not to undermine the bedrock labor relations policy embodied in the Steelworkers Trilogy favoring final and binding arbitration of workplace disputes in the unionized sector.
Drawing on lessons from a close reading of the three leading public policy decisions of the United States Supreme Court — herein dubbed the “Public Policy Trilogy” — the article shows how reviewing bodies SHOULD review de novo the question whether reinstatement REMEDIES, and not the underlying employee conduct, comply with clearly defined public policies. The Steelworkers Trilogy can be accommodated by confining the public policy review to the question of reinstatement — as distinct from the question whether the arbitral finding of a contract violation draws its “essence” from the collective bargaining agreement — and further, by basing the public policy review on facts found by the arbitrator in accordance with the parties’ agreement to submit their dispute to “final and binding” arbitration. These principles derive from a close reading of the Supreme Court’s holdings and discussion in the Public Policy Trilogy. The article shows how public sector cases in the private sector, and in the public sector in Oregon, Illinois, and Pennsylvania, while largely consistent with this more nuanced view of the Trilogy, have occasionally strayed from these teachings and too narrowly applied the public policy exception.
Very interesting insights into a very important area of labor arbitration law. Check it out!
October 15, 2012
Ruan on Wage Theft
Nantiya Ruan (Denver) has just posted on SSRN her article What's Left to Remedy Wage Theft? How Arbitration Mandates that Bar Class Actions Impact Low-Wage Workers (forthcoming Mich. St. L. Rev.). Here's the abstract:
For low-wage workers who suffer “wage theft” – employers illegally withholding portions of their wages – the dollars missing from their paychecks violate existing law and significantly impact the well-being of individuals, families, and communities. Despite this dire societal problem, the Supreme Court continues “closing the courtroom doors” in two ways: allowing employers to force workers out of court and into private arbitration; and prohibiting aggregate claims. Such trends, in combination, silence wage theft, leaving many claims unheard while unscrupulous employers gain direct advantage.
This Article explains how various procedural rulings have combined to prevent meaningful redress for wage theft. Because of high transaction costs and relatively low potential damages, low-wage workers are likely to recover their lost wages only if they band together with similarly-situated workers in an aggregate lawsuit. However, collective action is under attack: AT&T Mobility v. Concepcion, the latest Supreme Court case to approve of mandatory arbitration clauses, allowed a corporation to impose “agreements” mandating individual arbitration and barring class actions.
This Article brings new insights into the widening blind spot the Supreme Court has for the impact procedural rules have on the substantive rights of low-wage workers. Moreover, it touches upon a greater trend in American jurisprudence of courts shutting out plaintiffs, especially those unlikely to afford legal representation. By drawing attention to the unjust effects of facially neutral rules on low-wage workers, this Article contributes to the national conversation on how Supreme Court precedent limiting judicial access affects society’s most vulnerable.
Yet another reason why Concepcion was wrongly decided.
September 25, 2012
Padis: Regulate Arbitration
George Padis (Texas 2012) has just posted on SSRN his Note (forthcoming Tex. L. Rev.) Arbitration Under Siege: Reforming Consumer and Employment Arbitration. Here's the abstract:
In its recent terms, the U.S. Supreme Court has taken up the issue of arbitration - most notably in AT&T Mobility LLC v. Concepcion, Rent-A-Center West v. Jackson, and Stolt-Nielson S.A. v. AnimalFeeds International. All three decisions expanded the scope of federal arbitration in consumer and employment contexts in important and surprising ways. Scholars have been sharply critical of these decisions: For example, Concepcion prompted Dean Erwin Chemerinsky to remark in an op-ed in the L.A. Times that the decision is 'part of a disturbing trend of the five most conservative justices closing the courthouse doors to injured individuals . . . . [and] favoring the interests of businesses over consumers, employees and others suffering injuries.'
Meanwhile, cases like Jones v. Hallburton (portrayed in the HBO movie Hot Coffee) have cast a public spotlight on arbitration, and arbitration is under siege. Congress has enacted two measures to address this problem: The Consumer Financial Protection Bureau is empowered to address the issue of consumer arbitration and a defense appropriations rider in 2010 - portrayed in Hot Coffee - prohibits arbitration in employment contracts by defense contractors. A third proposal, the Arbitration Fairness Act, would ban arbitration in all consumer and employment contracts. This Article argues that the approach in the Supreme Court - broadly enforcing all arbitration agreements regardless of the specific nature of the dispute - is too broad and extends arbitration into areas where it presents serious problems, most notably the small-claim consumer class action context. But the congressional reforms banning arbitration in all consumer and employment contracts are also overly broad.This Article proposes a middle ground: Administrative regulations promulgated by the Consumer Financial Protection Bureau and the EEOC that provide dispute-specific guarantees for consumers and employees and safe harbors for companies.
Maybe. But the EEOC has only procedural (not substantive) rulemaking authority under Title VII, and neither the CFPB nor the EEOC have rulemaking authority regarding the FAA. Thus, this leaves the door open for the Court to say that the text of the FAA trumps the regs of the EEOC/CFPG; even if the text of the FAA really doesn't, cases like Stolt-Nielsen and Concepcion illustrate that the Supreme Court is all too willing to wilfully misread the plain language of the FAA in favor of the Court's policy preference for arbitration. The solution, ultimately, is to get a new Court majority.
September 06, 2012
Helfand on Hosanna-Tabor & More
Michael Helfand (Pepperdine) has just posted on SSRN his article (forthcoming Minn. L. Rev.) Religion's Footnote Four: Church Autonomy as Arbitration. I've just skimmed the article and find it fascinating -- I can't wait to read it more carefully. Here's the abstract:
While the Supreme Court’s decision in Hosanna-Tabor v. EEOC has been hailed as an unequivocal victory for religious liberty, the Court’s holding in footnote four – that the ministerial exception is an affirmative defense and not a jurisdictional bar – undermines decades of conventional thinking about the relationship between church and state. For some time, a wide range of scholars had conceptualized the relationship between religious institutions and civil courts as “jurisdictional” – that is, scholars converged on the view that the religion clauses deprived courts of subject-matter jurisdiction over religious claims. In turn, courts could not adjudicate religious disputes even at the request of the parties. In stark contrast, footnote four rejected this jurisdictional approach to the religion clauses; according to the Court’s logic, the ministerial exception – like other affirmative defenses – could be waived by the parties; and with such waiver, courts could adjudicate religious claims that had previously been deemed beyond the authority of the judicial system.
Far more than a procedural nicety, footnote four signaled a radical rejection of the prevailing paradigm. However, the Court’s decision failed to explicitly provide a new vision of the relationship between church and state. To replace the discarded jurisdictional approach, this Article contends that the kernels of such a vision can be found in the Supreme Court’s early church property cases, which understood the autonomy of religious institutions as a constitutionalized version of arbitration. Thus, the authority of religious institutions – like the authority of arbitrators – was derived from the implied consent of its members and the decisions of religious institutions were subject to judicial review for misconduct. While the Supreme Court’s later church property cases rejected this approach, returning to these core principles – consent and judicial review – provides the doctrinal foundations for the Court’s new framework for the relationship between church and state. And, applying this new framework can help resolve some of the pressing litigation questions left unresolved by the Supreme Court’s decision in Hosanna-Tabor.
June 26, 2012
Labor Law Roundup
- The unique aspects to working at an Apple retail store. Or, "why do a lot people want sell a ton of stuff for low wages?"
- The RLA, American Airlines, the FAA funding bill, and retroactivity. This article describes a case involving these issues as possibly spelling the real end to unions. I don't buy that description, but it's an interesting case not getting much attention.
- The NLRB creates a new webpage showing cases involving non-union concerted and protected activity. I've long thought the Board should do more in this area, so I'm a fan. Even if you're not, the website does a nice job conveying info and shows why the NLRB has been a web leader among federal agencies for a while.
- Justin Keith on the D.C. Circuit's recent Du Pont case, which remanded to the Board to explain how the result fit with its precedent.
- The Board (a couple of weeks ago) asks judge to reconsider ruling against new election rules.
Hat Tips: Matt Bodie, Patrick Kavanagh
April 12, 2012
Horton Hatches an Egg?
I've been noodling lately with Tim Glynn (and bothering the likes of Rebecca White, Mike Zimmer, and Steve Willborn) about the significance of DH Horton for mandatory arbitration. I've been around long enough to see a number of efforts fail to knock the Federal Arbitration Act off the top of the hill -- including the '91 Civil Rights Act, OWBPA, and, most recently, state unconscionability law. So it's not like I'm very optimistic about yet another effort.
Still, I'm pretty intrigued by Horton's conclusion that an employment agreement barring "joint, class, or collective claims . . . in any forum, arbitral or judicial" is a violation of the NLRA for workers covered by the statute. And, whether or not, the Board is "right" on the law, the Supreme Court's deference doctrine should, at least in theory, require the Fifth Circuit to uphold its construction of the NLRA. However, the courts have not been as deferential to the Board as maybe Chevron would require, and there's a joker in the deck anyway -- a court could defer to the Board on its interpretation of the NLRA but still find no deference due as to the FAA and the intersection of the two statutes.
So I'm far from predicting that this egg will actually hatch at the Fifth Circuit. (For those who are wondering about the picture on the right, that's Horton the Elephant, star of Horton Hatches the Egg and the better known Horton Hears a Who.)
On the other hand, I've been wondering why the Fifth Circuit decision matters all that much. Of course, it will matter a lot to the parties because it will determine whether the employer was guilty of an unfair labor practice in the case before the Board.
But my point is that, if the Board is correct, that would mean that any contract which barred concerted activity in pursuit of legal rights was contrary to a federal statute and should not be enforced. Presumably, then, any court asked to stay a suit pending arbitration would have to decide whether the arbitration clause was valid to the extent it barred bringing claims collectively, and, in the process, should afford the Board whatever deference was appropriate.
Or is that right? Does the party seeking release from such an agreement have to resort to the Board? This raises a question of primary jurisdiction. Or does it? After all, the Board has spoken on the principle, if not the application of the principle to the agreement before the court. And if there is a resort requirement, when does any unfair labor practice occur -- when the agreement is signed or when it's invoked to try to torpedo a class suit?
So far, the district courts have not been very receptive to such arguments, and even accepting them would raise a host of second order questions. But the reality remains that, regardless of the result in the Horton case itself, the challenge it poses may well arise in a number of other cases and may turn out to be the Court's next big arbitration issue in the employment context.
Tim and I are probably going to tackle this shortly, and any thoughts would be appreciated.
April 03, 2012
Customizing (?) Employment Arbitration Agreements
Erin O'Hara O'Connor (Vanderbilt Law), Kenneth Martin (New Mexico State - Business), & Randall Thomas (Vanderbilt Law) have just posted on SSRN their article Customizing Employment Arbitration (forthcoming March 2012, Iowa L. Rev.). Here's the abstract:
According to the dispute resolution literature, one advantage of arbitration over litigation is that arbitration enables the parties to customize their dispute resolution procedures. For example, parties can choose the qualifications of the arbitrator(s), the governing procedural rules, the limitation period, recoverable damages, rules for discovery and the presentation of evidence and witnesses, and the specificity of required arbitrator findings. While other scholars have questioned whether parties to arbitration agreements frequently take advantage of this customization, there is little solid empirical information about the topic.
In this article, we study the arbitration clauses found in a random sample of 910 CEO employment contracts entered into during the time period 1995 to 2005 to determine how much customization actually takes place. We find only a small number of instances where fine-grained customization has occurred. Parties pay very little attention to customizing arbitral proceedings in these employment contracts, although there is a significant increase in the practice over time. We find this result surprising given that CEO contracts are heavily negotiated documents.
Unexpectedly, we find that about half of the arbitration clauses in our contracts carve out a subset of potential claims or types of relief by reserving a right for the parties to seek such relief or file such claims in court. This phenomenon of customizing the circumstances under which parties will use arbitration has received almost no attention in the academic literature to date. In particular, we find that the types of claims carved out for court resolution are those involving firm efforts to protect the value of its information, reputation, and innovation. CEOs and companies in the information technology business are not significantly more likely to carve out such claims, and the use of these carveouts is increasing over time, suggesting that such carveouts are increasingly valuable to all firms. Unfortunately, California court regulation of arbitration clauses in employment contracts has significantly dampened the use of carveouts in contracts between CEO’s and their firms located in California. Our data suggests that court efforts to protect employees by scrutinizing the specific carveouts we observe is both unnecessary and destructive.
The latter finding won't come as much of a surprise to lawyers in the trenches. It's relatively common for employers to draft standard-issue arbitration agreements that require arbitration of discrimination, tort, and contract claims, but carve out for ligitation claims for injunctive relief and/or for trade secrets, noncompete agreements, etc. -- i.e., all the claims the employer might want to bring against an employee.
March 15, 2012
3d Circuit Applies Concepcion to Employment Arbitration
Thanks to Ian Mitchell for sending word of Quilloin v. Tenet Healthsystem Philadelphia, in which the Third Circuit held that signing an arbitration agreement prevented a nurse from bringing a wage claim as a class action.
March 13, 2012
D.A. Horton Appealed to 5th Circuit
ADR Prof Blog reports today that the NLRB’s decision in D.A. Horton, limiting arbitral class waivers in employment agreements, has been appealed to the Fifth Circuit. Given the political conservatism of the Fifth Circuit, I suspect that the only real question is how long it takes the court to reverse.